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Salim Ahmed Hamdan v. Donald H. Rumsfeld

Court District Court for the District of Columbia, United States
Case number Civil Action No. 04-1519 (JR)
Decision title Memorandum Opinion
Decision date 8 November 2004
  • Salim Ahmed Hamdan
  • Donald H. Rumsfeld
Other names
  • Hamdan I
Categories War crimes
Keywords civilian objects, common Article 3, destruction of property, international armed conflict, jurisdiction, violence to life
Other countries involved
  • Afghanistan
  • Cuba
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Salim Ahmed Hamdan, a Yemeni citizen, was Osama bin Laden’s driver. Captured in Afghanistan in 2001 by members of the United States Armed Forces, he was transferred to the United States detention centre at Guantanamo Bay in 2002. By an order of the President of the United States, Hamdan was designated to stand trial before a United States Military Commission for charges of conspiracy to commit multiple offenses, including attacking civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism. Hamdan’s counsel applied for a writ of habeas corpus alleging that the military commissions were unlawful and trial before them would violate Hamdan’s rights of access to a court.

The District Court for the District of Columbia in a decision of 8 November 2004 found that Hamdan could not be tried by the military commission until such time as a competent tribunal has determined whether he is entitled to prisoner of war status. Only in the event that the outcome of such a determination is negative may Hamdan be tried by military commission, provided that the military commission amends its rules which currently preclude the presence of the accused at certain hearings of his own trial. Without such amendments, trial by military commission would be unlawful. The decision is the first in a line of case law before the United States courts and military commissions in the case of Hamdan. 

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Procedural history

In late 2001, Hamdan, the former driver of Osama Bin Laden, was captured in Afghanistan and detained by American military forces. In June 2002, Hamdan was transferred to the detention facility set up by the United States Department of Defense at Guantanamo Bay, Cuba.

On 3 July 2003, the President of the United States designated Hamdan for trial by military commission. In December 2003, Hamdan was placed in isolation in Camp Echo, a facility within the detention centre at Guantanamo Bay and military counsel was appointed for him.

On 12 February 2004, Hamdan’s counsel filed a demand for charges and speedy trial under Article 10 of the Uniform Code of Military Justice (UCMJ).

On 23 February 2004, the Appointing Authority, designated by the Secretary of Defense to issue orders establishing and regulating the military commissions, ruled that the UCMJ did not apply to Hamdan’s detention.

On 6 April 2004, Hamdan’s counsel filed before the District Court for the Western District of Washington a petition for habeas corpus.

On 9 July 2005, Hamdan was formally charged with conspiracy to commit: attack on civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism. The case was transferred to the District Court for the District of Columbia on 2 September 2004 pursuant to the case law of the Supreme Court in Rasul v. Bush.

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Related developments

On 15 July 2005, the Court of Appeal for the District of Columbia reversed the decision of the District Court holding that military commissions are legitimate if approved by Congress and that Al Qaeda members are not covered by the provisions of the 1949 Geneva Conventions.

On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case. On 29 June 2006, the Supreme Court reversed the decision of the Court of Appeals considering that the military commissions as established by the Bush Administration violated the Uniform Code of Military Justice as well as the 1949 Geneva Conventions, particularly Common Article 3.

The United States Congress subsequently passed the Military Commissions Act of 2006.

On 6 August 2008, a United States Jury composed of six military officers convicted Hamdan of providing material support for terrorism. He was acquitted on the charge of conspiracy and three of the eight charges of material support. He was sentenced to 66 months’ confinement, but the military judge credited him with 61 months and 8 days for the time he spent in pre-trial detention. On 24 November 2008, Hamdan was transferred to Yemen where he remained in prison until 27 December 2008.

Hamdan appealed his conviction to the US Court of Military Commission Review. By a decision of 24 June 2011, Hamdan’s conviction and sentence was affirmed.

Hamdan appealed to the Court of Appeals for the District of Columbia. By a decision of 16 October 2012, the Court of Appeal overturned Hamdan’s conviction on the grounds that material support for terrorism was not a war crime before 2001 (see J.H. Cushman, 'Appeals Court Overturn Terrorism Conviction of Bin Laden’s Driver', The New York Times, 16 October 2012).

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Legally relevant facts

Hamdan was Osama Bin Laden’s driver. He was captured in Afghanistan in 2001 and transferred to Guantanamo Bay in 2002 (p. 6).

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Core legal questions

  • Is Hamdan entitled to protection as a prisoner of war under the Third Geneva Convention to the effect that he is not triable by a military commission pursuant to Article 102 of said Convention?
  • In the affirmative, can Hamdan enforce his rights before the District Court?
  • In the negative, are military commissions established pursuant to Military Commission Order Nº 1 consistent with the requirements of the Uniform Code of Military Justice?

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Specific legal rules and provisions

  • Articles 21 and 39 of the Uniform Code of Military Justice.
  • Articles 3 and 102 of the Geneva Convention Relative to the Treatment of Prisoners of War.

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Court's holding and analysis

Having considered prior case law of the United States Supreme Court in Quirin, Yamashita and Madsen, the Court held that the President’s authority to establish military tribunals derives from the then Acts of War, now contained in Article 21 of the Uniform Code of Military Justice (UCMJ) by which the United States Congress authorises the trial of offenders who by the law of war may be tried by military commissions (p. 12).  The laws of war necessarily include the Third Geneva Convention, to which both the United States and Afghanistan are parties (p. 13). If Hamdan is entitled to protection as a prisoner of war under the Convention, by virtue of Article 102 of that Convention, he could not be tried by a military tribunal (p. 14). The Court concluded that Hamdan was captured in the context of the international armed conflict in Afghanistan, which was between the Taliban and Al Qaeda against the United States and her Afghan allies (p. 15). Thus far, however, no competent tribunal has determined Hamdan’s status: the determination of the Combatants Status Review Tribunal that Hamdan was affiliated with Al Qaeda is not a de facto determination of Hamdan’s status. The government must convene a competent tribunal and seek a specific determination of Hamdan’s status under the Geneva Conventions. Until or unless such a tribunal decides otherwise, Hamdan is entitled to full protection as a prisoner of war (pp. 18-19).

United States courts are bound to give effect to international agreements of the United States unless such agreements are not self-executing, i.e. if the agreement requires implementing legislation to render it effective as domestic law (p. 22). The relevant provisions of the Geneva Conventions do not fall within this exception (p. 24) therefore Hamdan’s rights are enforceable before the Court (p. 25).

By virtue of the Military Commission’s rule permitting the exclusion of the accused from his trial for reasons other than his disruptive behaviour or his voluntary absence, the Military Commission is contrary to the UCMJ’s right to be present and as such, the Commission cannot try Hamdan unless and until such time as those rules are amended (pp. 41-42).

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Further analysis

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Instruments cited

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Related cases

A very important, related case is Rasul v. Bush (2004). This case marked the beginning of litigation by the Center for Constitutional Rights against the US' treatment of Guantanamo detainees and their procedural rights. In this case, the US Supreme Court ruled that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in the course of armed conflict and subsequently detained in Guantanamo Bay.

The litigation eventually resulted in the 2008 Boumediene v. Bush-ruling, where the Supreme Court found that Guantanamo detainees have a right to file habeas corpus petitions in order to review the lawfulness of their detention.

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Additional materials

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